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On Public Option, “Not No” Doesn’t Equal “Yes”

There remain about 16 senators who have yet to articulate a clear position on the public option. What are these folks thinking? I can’t say; nobody has ever accused the members of the United States Senate of being overly decisive. But I’d imagine that a decent number of them are taking the same position as Democratic Senator Mark Warner of Virginia:

Last night, at John Bell’s fundraiser, Senator Warner said to a group of people that, in the end, he would not vote against health care reform containing the public option.

Read the above statement carefully. What Warner promised to his constituents is that “he would not vote against health care reform containing the public option.” That’s not nothing. But what could Warner do — while still being true to his word?

— He could vote for an amendment that stripped the public option from the health care bill.
— He could vote against, or even filibuster, an amendment that sought to add a public option.
— He could lobby the Senate leadership not to put a bill with a public option on the floor.
— He could try to become part of the conference committee reconciling the House and Senate bills, and negotiate against a bill containing a public option.
— Technically speaking, he could filibuster a health care bill containing a public option — provided that he didn’t vote against it if it overcame the filibuster and came to a floor vote.
— If the health care bill were cleaved into two pieces, he could arguably vote against whichever half of the bill contained the public option — and then claim later that he’d indeed voted for health care reform (before he’d voted against it).

Although the latter two possibility are somewhat fanciful and would require a pretty deceitful statement on Warner’s behalf, the first couple are real problems. There would seem to be a very strong possibility that, whatever health care bill is ultimately reported to the Senate floor, it will be subject to some kind of vote on an amendment regarding the public option.

Suppose, for example, that the bill reported to the Senate does contain a public option. Anyone could then introduce an amendment which sought to eliminate it. This amendment would almost certainly get the approval of 39 of the 40 Republicans. If they were joined by some combination of 11 Democrats plus Olympia Snowe, the amendment would prevail. Someone like Warner would be free to vote for this amendment — he could kill the public option without having to vote against the health care bill itself.

Such an amendment could be filibustered, if 40 enthusiastic Democrats banded together to block it from coming to a floor vote. Undoubtedly, if and when such a situation arose, there would be a very active campaign from the blogopshere urging them to do exactly that. But this could be a perilous strategy: filibustering an up-and-down vote on the public option could embolden conservative Democrats filibuster an upand-down vote on the overall health care reform package. For all the talk about the use of reconciliation, the most straightforward path toward a healthcare reform bill passing remains for the Senate leadership to encourage Blue Dog democrats like Ben Nelson and Evan Bayh to vote for cloture (to break a filibuster), even if they wind up voting against the underlying bill: go ahead and let them have their cake and eat it too. This strategy is much less likely to be effective, however, if Democrats were to filibuster an amendment on the public option from getting and up-or-down vote.

Alternatively, the bill reported to the Senate floor might not include a public option. In that case, someone like Jay Rockefeller could introduce an amendment to include one. This amendment too could be filibustered — and it almost certainly would be. Probably between 37 and 39 Republicans would vote to sustain the filibuster, and they’d be joined by a number of Blue Dog Democrats who could vote for the filibuster without having to vote against health care itself; indeed, some of them would probably complain loudly about how liberals were trying to muck up thier hard-earned “compromise”.

Ultimately, I don’t think advocates of the public option are doing themselves a favor by being generous in how they interpret ambiguous replies from Senators. If anything, some number of the ostensible “yes” votes — like Diane Feinstein and Majority Leader Read — seem to be from people who support a Public Option In Name Only (POINO), something which they call a “public option” but which is really just another private plan or some kind of co-op proposal. If the people who exerted the most influence on the health care debate — like Harry Reid, Max Baucus, Kent Conrad — were more forceful advocates of a public option, then perhaps there would be more argument to treat the ambiguous votes as “leaning yes”. But since they aren’t, you might wind up with some whippable votes with nobody there to whip them.

Nate Silver is the founder and editor in chief of FiveThirtyEight.